Government officials pressed on ‘unlawful’ detention of asylum seeker

Government officials have been questioned on the circumstances that led to an asylum seeker being "unlawfully" detained for five days after having a visa granted.

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alan Tudge.

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alan Tudge. Source: AAP

Department officials have resisted answering questions about the "unlawful" detention of an asylum seeker, citing an imminent court appeal.

A Federal Court judge last month lashed acting Immigration Minister Alan Tudge for his handling of the asylum seeker’s case, calling his conduct potentially “criminal”.

The asylum seeker - an Afghan man referred to as PDWL - continued to be held in Western Australia’s Yongah Hill Detention Centre despite the Administrative Appeals Tribunal (AAT) saying he should be granted a visa.

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Mr Tudge has strongly rejected any suggestion of improper conduct over the proceedings.

During a Senate estimates committee hearing on Monday, Home Affairs secretary Mike Pezzullo resisted requests to go into the details of the matter - citing the federal government's intention to appeal the judgement.

Secretary of the Department of Home Affairs Mike Pezzullo speaks during a Senate inquiry at Parliament House in Canberra.
Secretary of the Department of Home Affairs Mike Pezzullo speaks during a Senate inquiry at Parliament House in Canberra. Source: AAP


“I'm advised the Commonwealth is intending to appeal the said decision that you have premised your question on,” he told the committee.

Mr Pezzullo said in this case the AAT had “purported” to issue a visa because it sought to vacate a decision the department had made.  

“Because that's going to be a matter now to be contended in argument before a court on appeal, I don't propose to go further into the detail," he said.



Greens Senator Nick McKim led the line of questioning against government officials, saying he wanted to understand the circumstances leading to the federal court judge’s scathing judgement. 

Justice Geoffrey Flick last month said Mr Tudge’s conduct raised the prospect of “both civil and potentially criminal sanctions, not limited to a proceeding for contempt". 

"In the absence of explanation, the minister has engaged in conduct which can only be described as criminal,” he said.  

“He has intentionally and without lawful authority been responsible for depriving a person of his liberty."

Greens Senator Nick McKim.
Greens Senator Nick McKim. Source: AAP


Senator McKim asked Australian Border Force Commissioner Michael Outram if there was any situation in which it would be lawful to hold a person in detention who holds a valid visa.

“We do everything we can to work with Home Affairs to make sure that everyone is there lawfully under the Migration Act,” Mr Outram replied.

Mr Outram said generally the Department of Home Affairs would provide instructions if a change had resulted in a detainee being required to be released. 

"We look at the individual circumstances and seek to ensure that everybody held in detention is there lawfully." 

Commissioner of the Australian Border Force (ABF) Michael Outram speaks during a Senate inquiry at Parliament House in Canberra.
Commissioner of the Australian Border Force (ABF) Michael Outram speaks during a Senate inquiry at Parliament House in Canberra. Source: AAP


In December 2019, the Department of Home Affairs rejected PDWL's temporary protection visa application on the basis he had been convicted of assault.

In his judgement, Justice Flick found the AAT had been wrong to grant the man a visa, but determined the minister should not have kept him in detention.

Lawyers who represented PDWL have told SBS News they were “very concerned” by the government’s decision not to promptly release PDWL upon the granting of a visa on 11 March.

“While it is unfortunate that the government may not have been happy about the AAT decision regarding PDWL, that doesn’t give the government the right to delay implementing the decision of a tribunal or court while a visa holder remains locked in immigration detention,” Northam Lawyers Principal Solicitor Mark Northam has said.  



Home Affairs General Counsel Pip de Veau also revealed to the committee on Monday the asylum seeker has launched civil action against the federal government alleging “unlawful” detainment.

“The instructions are given to appeal and it's in the process of being lodged and there is other ongoing litigation,” she said.

"It is not the ordinary run-of-the-mill decision where a visa is granted and that's communicated to officers who hold views about whether a person should be continued to be in detention or not. 

"It is not a normal case, it is fairly unique in its circumstance ... and that is the heart of the matter that will be of the appeal."

Mr Tudge has previously said he is considering options for appeal. 


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4 min read
Published 19 October 2020 at 6:37pm
By Tom Stayner